United States District Court, W.D. North Carolina, Charlotte Division
SHARON VICTORIA WILSON-DYE, et. al., Plaintiffs,
ELISA CHINN-GARY, et. al., Defendants.
MEMORANDUM AND RECOMMENDATION AND ORDER
S. Cayer Judge
MATTER is before the Court on “Defendants
Jeremy Wilson, Brock & Scott, PLLC, and Trustee Services
of Carolina, LLC's Motion to Dismiss Plaintiffs'
Complaint” (document #13), “Defendant Brian
Moynihan's Motion to Dismiss Plaintiffs'
Complaint” (document #14), and the Court's
“Order” entered October 19, 2017 (document #15)
(directing Plaintiffs to show cause why this matter should
not be dismissed and setting a deadline of November 20, 2017
for them to respond). Plaintiffs have not responded to the
Court's Order or the Motions to Dismiss, nor have they
requested an extension of time to respond.
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and these Motions are
now ripe for the Court's consideration.
October 19, 2017 Order, the Court ordered:
[P]rior to recommending to the Honorable Robert J. Conrad,
Jr., the District Judge to whom this case is assigned, that
this case be dismissed for failure to prosecute, the Court
will allow Plaintiffs an opportunity to show cause why this
matter should not be dismissed.
IS THEREFORE ORDERED THAT:
1. On or before November 20, 2017, Plaintiffs shall
SHOW CAUSE why the Complaint should not be
DISMISSED for failure to prosecute this
action. Plaintiffs are warned that failure to make a
timely response to this Order to Show Cause may result in
DISMISSAL of this case WITH
Document #15 (emphasis in original). The docket reflects that
the Clerk mailed a copy of the Order to each Plaintiff.
District Court has the inherent authority to dismiss a case
for failure to prosecute, and Rule 41(b) “provides an
explicit basis for this sanction.” Doyle v.
Murray, 938 F.2d 33, 34 (4th Cir. 1991). Since dismissal
is a severe sanction, the Court must exercise this power with
restraint, balancing the need to prevent delays with the
sound public policy of deciding cases on their merits.
Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978).
The Fourth Circuit requires a trial court to consider four
factors before dismissing a case for failure to prosecute:
“(1) the plaintiff's degree of personal
responsibility; (2) the amount of prejudice caused the
defendant; (3) the presence of a drawn out history of
deliberately proceeding in a dilatory fashion; and (4) the
effectiveness of sanctions less drastic than
dismissal.” Hillig v. Comm'r of Internal
Revenue, 916 F.2d 171, 174 (4th Cir. 1990).
have failed to respond to the Motions to Dismiss as well as
the Court's Order. Accordingly, the Court concludes that
any sanctions short of dismissal would not be effective.
IS ORDERED that all further proceedings in this
action, including all discovery, are
STAYED pending the District Judge's
ruling on this Memorandum and Recommendation and Order.
THE FOREGOING REASONS, as well as those stated in
Defendants' briefs, the undersigned respectfully
recommends that “Defendants Jeremy Wilson, Brock &
Scott, PLLC, and Trustee Services of Carolina, LLC's
Motion to Dismiss Plaintiffs' Complaint” (document
#13) and “Defendant Brian Moynihan's Motion to